Despite Unproved Will, Karnataka HC Restores Decree Requiring Hangal House Occupant To Hand Over Property, Citing Municipal Records Naming Plaintiffs As Owners

The plaintiffs sued for possession of a house at Hangal and recovery of rent, claiming ownership under a 1984 will allegedly executed by the original owner, Noorahamedkhan, in favour of the first plaintiff’s mother and the second plaintiff.

They alleged that the defendant occupied the property as a tenant; the defendant denied the plaintiffs’ title and tenancy, asserted permissive possession followed by adverse possession, and disputed the will.

The trial court decreed possession for the plaintiffs, but the first appellate court reversed and dismissed the suit, principally finding that the will had not been proved.

The plaintiffs appealed under Section 100 CPC. During the appeal, both original plaintiffs died and their legal representatives were substituted.

The appeal was considered under Section 100 CPC, which confines a second appeal to a substantial question of law.

The Court referred to the principle that a tenant, as a stranger to a will, cannot ordinarily challenge its genuineness or validity, relying on Ghanshyam Dass v. Shakuntla Bakshi, Pandi Bandu v. Sapadu Krishna, Kamaljit Singh v. Sarabjit Singh, and Asharfi Devi v. Shankar.

It also referred to Metapalli Lasum Bai v. Metapalli Muthaiah concerning a registered will.

The Court noted that the defendant’s plea of adverse possession had been rejected by the first appellate court and that this finding had not been challenged; it therefore treated the defendant’s possession as unauthorised.

It also relied on the municipal assessment extract, which recorded the plaintiffs as owners and the defendant as occupier, and on the plaintiffs’ evidence that the defendant occupied the property under the original owner.

Although the will was not produced and the first appellate court had found it unproved, the High Court concluded that the plaintiffs had established title, relying on the municipal records and the defendant’s failure to prove adverse possession.

It accordingly held that the first appellate court had erred in dismissing the suit.

It set aside the judgment and decree in R.A. No. 4/2009 and restored the trial court’s decree directing the defendant to deliver possession of the suit property to the plaintiffs.